Bloomfield v. Ketcham

Headnote

The affidavit required by the Code of Civil Procedure (§ 1279) to accompany the case on submission of a controversy upon admitted facts, must i be made by one of the parties where there is a natural person a party by whom it may be made ; an affidavit of an attorney of one of the parties is insufficient.

This was an appeal from a judgment of General Term rendered upon a case submitted under section 1279 of the Code

of Civil Procedure. The affidavit which accompanied the case submitted was made by the attorney for the plaintiff.

The court say:

“ To avoid collusive or fictitious submissions the Code (§ 1279) requires that to entitle parties to submit a controversy, the case must be accompanied with the affidavit of one of the parties, to the effect that the 'controversy is real, and that the submission is made in good faith for the purpose of determining the rights of the parties. An attempt has been made in the present case to comply with that provision, but the affidavit, instead of being made by one of the parties and being positive, is made by the attorney in fact of one of the parties, who swears that the submission is made in good faith and that the controversy is real to the best of his knowledge, information and belief.

“ There is- no authority in the Code for making such an affidavit by attorney, and, as the facts required to be stated are peculiarly within the knowledge of the parties, we think it should be made by one of -them, and that the affidavit of an attorney is not a compliance with the statute, when there is a natural person, a party to the proceeding, by whom it may be made.”